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2008 DIGILAW 1292 (RAJ)

State of Rajasthan v. Umardeen and Subekhan

2008-05-09

M.C.BHAGWATI

body2008
JUDGMENT 1. - This criminal appeal has been preferred by the State against the judgment dated 15th March, 1996 passed by the Special Judge (SC/ST) Cases, Alwar whereby the learned Single Judge has acquitted the respondent Subekhan for the offences under Sections 354, 341, 323/34, 324/34 Indian Penal Code and for the offences under Section 3(1)(111) and 3(1)(xi) of the S.C./S.T. (Prevention of Atrocities), Act, 1989 (hereinafter to be referred to as the Act, 1989) and the accused Umardeen for the offences under Sections 341, 323, 323/34 and 324 Indian Penal Code. 2. The facts giving rise to the prosecution case are briefly stated as under: 3. PW-1 Mannu Ram submitted a written report Ex.P/1 to the S.H.O., Police Station, Reserve Centre Industrial Area, Alwar to the effect that on 20th July, 1994 at about 3.30 AM, his sister PW/6 Sunita took her buffalows to Khilloo Ka Nalla for making them to graze grass. It is alleged that the accused Subhe Khan was also making his buffalows to graze the grass there and at that point of time, he with the ill-intention harassed her and thus outraged her modesty. It is also alleged that Sunita cried and somehow succeeded to escape and reported the entire incident to her mother and elder uncle. It is also alleged that her uncle Budh Singh and Ratan Lal went to Sube Khan and asked him as to why did he do such an indecent act with Sunita. Subhe Khan replied that such sort of act with such a 'Chamatti' is being done everyday by him. Thereupon a fighting ensued between both the parties as a result of which Ratan Lal and Budh Singh sustained injuries. The police registered the case upon the written report Ex.P/1 of PW/1 Manu Ram and commenced investigation. 4. During the course of investigation, the Investigating Officer visited the spot and prepared site plan Ex/P/3, recorded the statements of the witnesses acquainted with the facts and circumstances of the case under Section 161 of Criminal Procedure Code, got both Budh Singh and Ratan Lal medically examined and after investigation submitted the charge-sheet before the concerned Court who in turn committed the same for trial to the Court of Special Judge, SC/ST Act Cases. 5. Heard the arguments of Mr. 5. Heard the arguments of Mr. B.K. Sharma, learned Public Prosecutor for the State as also Shri D.K. Sharma, appearing on behalf of the accused respondents and perused the impugned judgment of the lower Court along with prosecution evidence and relevant material available on record. 6. Shri B.K. Sharma, learned Public Prosecutor has argued that the statements of PW/11- Bhullu, PW/-4- Bihari, and PW/6 Sunita have not been properly appreciated nor the statmenet of PW/1 Manuram, PW/2 Budh Singh, and PW/3 Ratan Lal, PW/9 Narayani and PW/10 Ashroo have properly been taken into consideration by the trial Court and that the trial Court has erroneously acquitted the accused respondents for the alleged offences. The judgment of the trial Court is both against the law and facts which deserves to be set aside. 7. Per contra, Shri D.K. Sharma, learned counsel appearing for the accused-respondents has vehemently argued that there is not even an iota of evidence with regard to outraging the modesty of PW/6 Sunita on record which may lead the Court to convict the accused-respondents in the offence under Section 354 Indian Penal Code. Shri Sharma has further argued that there are material contradictions in the statement of prosecution witnesses. PW/4 - Bihari has not corroborated the prosecution case albeit he has not been declared hostile. There is one more independent witness PW/11 - Bhullu, who has been examined by the prosecution but he has also not supported the prosecution case. Mr. Sharma has further contended that with regard to offence under Section 354 Indian Penal Code, the prosecution has examined only one witness and she is PW/6, Sunita. The evidence of rest of the witnesses is merely hearsay evidence on the basis of which the accused cannot be convicted but so far as offences under Sections 323, 324 and 341 are concerned, the evidence of PW/1 Manuram, PW/2 Budh Singh, PW/3 Ratan Lal, PW/9 Narayani and PW/10 Ashroo, is not worthy of credence as there are material contradictions and improvements in their statements which tends the whole prosecution story unreliable. Learned counsel Shri Sharma at the end of his arguments has drawn my attention towards Para 30 of the impugned judgment and has endeavored to impress upon that none of the prosecution witnesses whose naives have occurred not only in the FIR Ex.P/1 but during the course of statements of other prosecution witnesses has been examined by the prosecution. Above all, even the Investigating Officer of this case also has not appeared in the witness box. Shri Sharma submits that the judgment of the lower Court is perfect, just and based on proper appreciation of prosecution evidence which calls for no interference and the instant State Appeal deserves to be dismissed. 8. A bare perusal of report Ex.P/1 reveals that the prosecution case consists of two incidents. One incident is alleged to have occurred in Khilloo Ka Nalla, where the accused Subhe Khan has been indicated to have outraged the modesty of Sunita. The second incident is alleged to have taken place when Budh Singh alongwith Ratan Lal and others went to Subhe Khan and Umardeen to protest the incident which took place with Sunita. It is also alleged that on this compliant, both Subhe Khan and Umardeen reprimanded and started beating both of them, as a result of which both of them sustained injuries on their person. 9. The bring home the offence under Section 354 Indian Penal Code, the prosecution has examined only one witness and she is PW/6, Sunita. The evidence of rest of the witnesses namely PW/1 Manuram, PW/2 Budh Singh, PW/3 Ratan Lal, PW/9 Narayani and PW/10 Ashroo squarely falls within ambit of hearsay evidence. Albeit PW/11 - Bhullyu, PW/4 - Bihari and PW/6 Sunita have been projected to be eye-witnesses of this case but. PW/11 Bhullu has not supported the prosecution case as a result of which he has been declared hostile. So far as evidence of PW/4, Bihari is concerned, he has not been declared hostile, but he has not supported the prosecution case also. In his cross-examination, he has stated that he did not see Bhullu being assaulted by any of the accused respondents. So far as evidence of PW/4, Bihari is concerned, he has not been declared hostile, but he has not supported the prosecution case also. In his cross-examination, he has stated that he did not see Bhullu being assaulted by any of the accused respondents. On the contrary, he has fairly deposed that he did not see as to who, out of these two accused-appellants, was armed with which weapon and as per her version, PW/11 Bhullu was at that point of time with him on his field and PW/11 Bhullu has turned hostile. Thus, the evidence of both the so called eye-witnesses of this case does not lend any support to the case of the prosecution. The rest of the witnesses are family members or the near relatives of PW/6, Sunita. Undisputably and unequivocally, they are the interested witnesses and their evidence cannot be easily acted upon in favour of prosecution. 10. PW/12 Dr. Mahendra Gupta is said to have medically examined the injured PW/2 - Budh Singh and PW/3 Ratan Lal, Dr. Gupta found one injury on the left side of forehead of Ratan Lal and one simple injury on the right hand and left thumb of injured Budh Singh. The statements given by all these witnesses in their examination-in-chief and the cross-examination lead me to infer that there was exchange of abuses and fight between both the parties taken place. The injuries appearing on the person of both these injured persons have been found to be simple and superficial in nature. It must be quite probable that both these injured must have sustained these superficial simple injuries during that fight and this probability cannot be ruled out easily. 11. The learned Sessions Judge has critically examined and properly appreciated the evidence of the prosecution witnesses in detail and has observed in Para 30 of the impugned judgment that all those material witnesses who were well acquainted with the facts of the case have not been examined by the prosecution during trial to prove the alleged offence against the accused respondents beyond reasonable doubt. More so, the Investigating Officer of this case has also not appeared in the witness box. The reasons for not examining these witnesses in evidence are obscure. Anyway it leaves the impression that the prosecution is guilty of withholding the material evidence. More so, the Investigating Officer of this case has also not appeared in the witness box. The reasons for not examining these witnesses in evidence are obscure. Anyway it leaves the impression that the prosecution is guilty of withholding the material evidence. Not only that the prosecution has failed to establish the offence under Section 354 of Indian Penal Code but has utterly failed to prove other charges also beyond reasonable doubt. The finding of the learned trial Court is found to be sound and cogent and is based upon the prosecution evidence as has been led. The acquittal of the accused-respondents vide impugned judgment is well merited with which I fully concur and to my firm view it calls for no interference. 12. As a result of above, the State Appeal is found to be devoid of merit and the same stands dismissed.Appeal dismissed. *******